Citation Nr: 0428005
Decision Date: 10/08/04 Archive Date: 10/15/04
DOCKET NO. 96-31 969A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Tenner, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1968 to
January 1970.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a May 1996 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO).
In April 1998, the veteran testified at a hearing at the RO.
In March 2003, the veteran testified at a videoconference
hearing before the undersigned Acting Veterans Law Judge.
Transcripts of the hearings are of record.
In June 2001, on its own motion the Board raised the issue of
the adequacy of the substantive appeal and the issue was
addressed at the hearing in March 2003.
The Board is now ruling on the adequacy of the substantive
appeal. Although the substantive appeal did not contain
specific arguments relating to errors or fact or law with
respect to the May 1996 decision, it evinced the veteran's
intent to perfect the appeal initiated by the notice of
disagreement after the issuance of the statement of the case.
While there is statutory authority to dismiss an appeal for
failure to allege specific error of fact or law, it is
discretionary and in this case the Board determines that the
substantive appeal is adequate. 38 C.F.R. § 20.202 (2003).
For this reason, the Board is proceeding with appellate
review. And after a review of the record, the claim is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, D.C.
REMAND
The record contains several inconsistencies that need to be
addressed before reaching a final decision.
The DD-214 shows that the veteran served in Vietnam for 12
months. The service personnel records contain a document
that shows that the veteran was in Vietnam from October 1968
to September 1969. Another document shows that the veteran
was assigned to a unit in Vietnam in October 1968 and he was
transferred to a unit stateside in April 1969. It is not
clear whether the veteran returned to Vietnam to complete the
other six months of his 12-month tour or had other Vietnam
service that is unaccounted for in the service personnel
records.
While in Vietnam, the veteran was initially assigned to HHC,
3rd Brigade, 82nd Airborne Division, as a photo lab
specialist. In February 1969, he was assigned to the 58th
Signal Company, which was attached to the 3rd Brigade as a
radio operator.
In a February 1996 statement, describing the stressful events
he experienced in service, the veteran stated that in October
1969, they were over run by the enemy and a lot of men were
killed.
On VA examination in February 1998, on history provided by
the veteran, PTSD was diagnosed.
In April 1998, the veteran testified that while on guard duty
on Halloween night in 1968, Tan Son Nhut Air Base was shelled
and the enemy attacked the perimeter.
In November 1998, the U. S. Armed Services Center for Unit
Records Research (CURR) submitted Operation Reports-Lessons
Learned of the 3rd Brigade, 82nd Airborne Division for the
period from August 1968 to April 1969 and a Daily Staff
Journal. The Daily Staff Journal showed that a rocket attack
occurred in Saigon on October 31, 1968. There is no record
of a rocket attack or other type of attack on Tan Son Nhut
Air Base for the same period of time.
As the diagnosis of PTSD was made before the in-service
stressors were verified and as at least the rocket and
perimeter attack on Tan Son Nhut in October 1968 has not been
verified, additional evidentiary development is needed to
substantiate the veteran's claim. Under the duty to assist,
38 C.F.R. § 3.159, the claim is remanded for the following
action:
1. At this stage of the appeal, to
ensure compliance with the VCAA in
accordance with 38 U.S.C.A. § 5103, the
veteran is notified that:
a. To substantiate his claim he
should submit information or
evidence of the stressful events he
experienced in Vietnam.
b. If he has evidence to
substantiate his claim, not already
of record, that is in the custody of
VA, he should identify the VA
facility so that the RO can obtain
the records.
c. If he has evidence to
substantiate his claim, not already
of record, such as records of
private medical care, he should
submit the records himself or with
his authorization, VA will make
reasonable efforts to obtain the
records on his behalf.
c. Ask the veteran to provide any
evidence in his possession that
pertains to his claim.
2. Ask the veteran for information or
evidence about the six month discrepancy
pertaining to his tour of duty in Vietnam
and for a more detailed account of the
stressful events he experienced in
Vietnam, not previously described.
3. If the veteran provides information
or evidence of additional stressors he
experienced in Vietnam, request
verification of the stressors with the U.
S. Armed Services Center for Unit Records
Research (CURR).
4. After the above development,
determine whether the record contains
sufficient medical evidence to decide the
claim. If not, obtain a VA examination,
including psychological testing, to
determine if the veteran has PTSD related
to service in Vietnam.
5. Thereafter, adjudicate the claim. If
the benefit sought is denied, furnish the
veteran a supplemental statement of the
case and return the case to the Board.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat.
2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).
____________________________________________
GEORGE E. GUIDO, JR.
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).